O'C. (J.) v. D.P.P.

Factual and Procedural Background

The Applicant is a retired member of An Garda Síochána who, at the age of 69, was charged with sixteen counts of indecent assault allegedly committed against a neighbour (“Complainant”) when she was between ten and thirteen years old (20 October 1974 – 19 October 1978). In September 1997 he was returned for trial in the Dublin Circuit Criminal Court.

Before that trial occurred, the Applicant sought judicial review in the High Court, asking for an order prohibiting the prosecution on the grounds of (i) excessive delay and (ii) prejudice to his defence. The President of the High Court granted prohibition, holding that:

• The delay in disclosure was explicable by the Applicant’s alleged misconduct; but
• The lapse of time, the death of the Applicant’s wife (a potential witness), his age, and his ill-health created a real risk of an unfair trial.

The Director of Public Prosecutions (“DPP”) appealed to the Supreme Court. The Applicant cross-appealed on the limited finding that the delay was attributable to him. The Supreme Court (Keane CJ, Denham J, Murphy J, Barron J – majority; Hardiman J dissenting) allowed the DPP’s appeal, dismissed the cross-appeal and substituted an order refusing prohibition. Justice Hardiman dissented, holding that the trial would be inherently unfair after such a lengthy lapse of time.

Legal Issues Presented

1. Whether, assuming the Complainant’s account to be true, the delay in making a complaint was caused by the Applicant’s own conduct (“dominion/suppression”).
2. Whether the combined effect of the delay, the death of a key defence witness, loss of memory and the Applicant’s age/health created a real and serious risk of an unfair trial.
3. Whether the High Court correctly exercised its discretion in granting an order prohibiting the prosecution.

Arguments of the Parties

Applicant’s Arguments

• The 18- to 22-year delay made it impossible to reconstruct events or locate alibi evidence.
• The death of his wife deprived him of a crucial witness regarding household circumstances and the Complainant’s visits.
• He is now elderly, suffers from severe cardiac illness and diabetes, and is under extreme psychological stress, all of which impair his ability to stand trial.
• The indictment is unspecific, effectively forcing him to defend by “bare denial”, which is unfair.

DPP’s Arguments

• There was no prosecutorial delay; the lapse was due to the Applicant’s own intimidation/dominance, which inhibited timely disclosure.
• Irish law sets no limitation period for serious sexual offences; delay alone does not bar prosecution.
• The Applicant has not proved specific prejudice that cannot be cured by trial-judge directions.
• The presumption of innocence applies at trial but does not prevent civil determination of prohibition applications.

Table of Precedents Cited

Court's Reasoning and Analysis

Majority (Keane CJ, Denham J, Murphy J, Barron J)

• The first enquiry is whether, on the balance of probabilities and assuming truth of the complaint, the delay is referable to the Applicant’s own actions. On the psychologist’s uncontradicted evidence, the Complainant’s reluctance to complain as a child, combined with parental inaction in 1988, was a foreseeable consequence of the Applicant’s alleged abuse. Therefore the delay could not profit him.
• Even where delay is so attributable, the court must still ascertain whether there is a “real and serious risk” of an unfair trial. The majority held risk not proved:
• The indictment, while lacking specific dates, was no more vague than similar charges upheld in other cases.
• The deceased wife’s possible testimony was speculative; abuse, if it occurred, would likely have been concealed from her.
• The Applicant’s age and ill-health created stress but did not impede his capacity to instruct counsel or participate.
• Any difficulty about alibi evidence is inherent in repeated-conduct cases and can be mitigated by appropriate jury directions.
• Accordingly, the High Court’s finding of prejudice was an error; prohibition should be refused.

Dissent (Hardiman J)

• After a 20-plus-year lapse the allegations depend solely on assertion versus denial; the death of the Applicant’s wife and faded memories create unavoidable prejudice.
• The psychologist’s examination was cursory and did not justify attributing delay to the Applicant.
• Trials so distant from the events put justice “beyond the reach of fair litigation”; prohibition should stand.

Holding and Implications

HELD: the appeal is allowed; the High Court order of prohibition is set aside; the application for prohibition is REFUSED.

Immediate effect: the criminal prosecution in the Circuit Criminal Court may proceed. Broader implications: the Supreme Court reaffirmed that, even in historical child-sexual-abuse prosecutions, an applicant must prove concrete prejudice; mere passage of time, ill-health or loss of potential witnesses will not suffice unless demonstrably impacting trial fairness. The decision strengthens the threshold for obtaining prohibition while recognising a dissenting caution against very stale prosecutions.